Author Archives: David Link

Rod Dreher has a good post about the martyrdom of Kim Davis. He is concerned about the effect of her case on religious freedom in general. But he’s ignoring the central protection Kentucky itself has instituted to protect religious liberty.

Prof. Eugene Volokh has the best analysis of the actual law, and the Kentucky religious freedom protection statute seems very clear that the state would make a reasonable accommodation for Davis if she were interested in being reasonable. In fact, the religious freedom laws passed by both the state and federal governments in the last two decades, are weighted — sometimes unreasonably (in my view) — in favor of religious freedom. Despite my feelings, that is a policy choice elected officials have made, and it is the law.

Davis’ best argument is that she doesn’t want to have her name on state marriage certificates if they will be issued to same-sex couples, because the use of her name in those circumstances violates her religious beliefs. The statute only requires her beliefs to be sincere, not objectively reasonable or even consistent. Under the Kentucky law, if it is not unduly burdensome on the state to remove her name, she could continue to serve in her job. That would require either reconfiguring how Kentucky marriage certificates look and perhaps having to reprint all of them going forward, or perhaps somehow scratching her name (if not her office title) from them. These options may or may not be reasonable given the specifics of what processes are in place, which ones are required by state statute, etc.

Volokh says this is a “modest” request. That might be true, though “modest” might not be the word I’d use. If one elected official in one Kentucky county can bring lawful marriages in her jurisdiction to a virtual halt because of her religious beliefs, and demands that her view of religion be accommodated countywide, and possibly statewide depending on the statutory rules for marriage forms, that seems to me immodest in the extreme.

Davis’s case is extraordinary because she has insisted that her personal religious belief should govern, not just her own actions, but those of her entire office, including (in her view) all of the people who work for her.

Compare the extent of her preferences to those of Judge Vance Day in Oregon. Judge Day has announced that he will not perform same-sex marriages due to his religious beliefs. Unlike the office of a county clerk, the performance of marriages is entirely discretionary for a judge. In fact, Judge Day specifically told his staff that they should forward any requests for same-sex marriages to other judges who do not share his religious objections. Judge Day has at the very least made it clear that his religious objections are his own, and made an accommodation to the same-sex couples who might have approached his office to make sure that their rights are protected at the same time that his religious beliefs are respected.

Here is another example, one cited by Dreher that works in the opposite direction. Gavin Newsom, as mayor of San Francisco, announced in 2004 that he felt California’s law prohibiting same-sex marriage was unconstitutional, and that henceforth City Hall would be happy to provide marriage licenses to same-sex couples, which is did, to great joy. Dreher calls this “lawlessness,” and implies that those who supported Newsom are hypocrites if they oppose Davis.

Newsom went beyond his authority as mayor, but he was not, as a NYTimes editorial quoted by Dreher suggests, defying a court order. In fact, the California Attorney General challenged the mayor’s political grandstanding, and when the California Supreme Court ruled against Newsom, the marriages ended. Dreher’s comparison of Newsom to Davis would hold only if the mayor had truly disobeyed the court ruling and maybe gone to jail for that.

Moreover, while Newsom was indeed acting (or more accurately overacting) on a moral principle, it was one grounded in the civil law, not God’s. The prior year, the Massachusetts Supreme Court had ruled that the state constitution protected the rights of same-sex couples to get married. While Newsom was in grave error about his own authority, he also knew when the stunt was over.

Davis now has to make that same determination. She can be a martyr for as long as she likes. Kentucky officials can determine whether it makes sense to accommodate her religious beliefs and remove her name from marriage certificates. The question is whether she is going to be reasonable enough to accept the terms she, herself, offered.

If there are Christian tattoo artists, we may have the next wave of anti-anti-discrimination cases.

I can’t say I find Mr. Bythewood’s argument for not providing the tattoo particularly convincing (is there really a “traditional tattoo honor code?”) but that’s the point. I don’t have to. It’s his business, and unless I’m very mistaken, he’s not the only tattoo artist in New York.

Anti-discrimination laws, including those based on gender, were most needed when discrimination was extensive, unregenerate and unlocalized. Since the 1950s, America has switched the defaults, and marginalized the kinds of discrimination that were taken for granted: based on race, gender, and now even sexual orientation. There will never be no discrimination unless someone has finally figured out a way to make a utopia work when its inhabitants will be human beings endowed with liberty. The best a free society can hope for is to stand, as a whole, for individual liberty, draw clear enough lines about what is truly out-of-bounds, and leave the gray areas for people to negotiate.

Getting a tattoo, ordering a cake for your wedding, arranging for a photographer to document your happiness; these are perfectly respectable gray areas where there are choices pretty much anywhere in this country. Those choices will not always be ideal ones everywhere, but unless the rule we are seeking is that everyone must have ideal choices everywhere, every time, we have to consider what the appropriate limits on government power must be.

I don’t want my government demanding that I can get a tattoo or a cake from anyone I want. As an un-inked American, I could no more have gotten a tattoo from Mr. Bythewood than Jane Marie could. Going somewhere else is one of the calamities I must live with as someone who values a free society.

Bythewood is partly right that Jane Marie trivializes the tradition of feminism with her overstated “wolf cry.” But that kind of self-dramatizing is becoming endemic. As true discrimination has diminished, it takes more effort to play the victim. Histrionics are practically necessary.

This does not just trivialize the profoundly important movements that got us to today, it trivializes government itself. There are vitally important things that we should expect of our government. But policing an infinite number of daily commercial and personal transactions is not among them.

If he says he’s a woman, then he’s a woman. . . My responsibility as a human being is to love and accept everybody. Not to criticize people for who they are.

That is a generous and loving statement.

But as is regrettably usual with Santorum, he then goes on…

I can criticize, and I do, for what people do, for their behavior. But as far as for who they are, you have to respect everybody, and these are obviously complex issues for businesses, for society, and I think we have to look at it in a way that is compassionate and respectful of everybody.

So here is a hard question for him. Who, if anyone, should Jenner be allowed to marry, based on his (one has to assume sexual) “behavior?” And why? If he is a woman, must he marry a man? Jenner says he is only attracted to women. But if he’s a woman, Santorum’s religious beliefs, as expressed repeatedly about those of us who are homosexual, take that off the table, right?

I don’t know or care a lot about whether this actor from “Empire” is gay or not. His non-reaction to a general sense that he is gay seems like a replay of what we went through with Sean Hayes back in the day.

But I have to say I think I can understand the reluctance of some young actors to be publicly and irrevocably identified as homosexual.

It’s not because of the closet — at least not these days. Whether or not we’ve reached critical mass on gay acceptance, it is clear to most people in Hollywood that it is not only possible to be openly homosexual and have a successful career, it can even get you some favorable press. In any event, we are long past the days of Rock Hudson.

The bigger challenge for a gay celebrity these days in coming out is the fear of being commandeered by the gay political establishment as the Latest Model.

For the last half century or so, lesbians and gay men have had to live in an artificially politicized world for the simple reason that the laws that were so harmful to us needed to be challenged by someone, and it pretty much had to be us. Very few heterosexuals worried about having sodomy laws used to blackmail them, and it took a generation of constant effort to get people to see that the lack of legal recognition for our relationships was, in fact, a problem for us. Those efforts have paid off in record time.

But here’s a fact that a lot of politically active people don’t always understand. Many people didn’t want to be political, or didn’t have the inclination in that direction. All those years of yelling, “Out of the bars and into the streets!” were a recognition of that fact. At lot of people did get out of the bars and into the streets, but it was only because they were persuaded how vitally important that was.

Once established, political activism can become just another bureaucracy fighting for its own continued existence. That’s perfectly fine for those who live for controversy and grievance.

But what if that’s not your thing? In a world where sexual orientation is far better understood (though there are notable exceptions), lawyers and postal workers and bakers and nurses have the luxury of leading lives as private as they choose. For actors or others in the orbit of celebrityhood, though, a certain amount of publicity is their oxygen. It’s also the oxygen of the activists, who tend to resent the closet because they have to respect it. Outing has always been controversial because it violated that necessary respect in a context where being openly gay would have the most value.

But we have a more than adequate supply of good, great and even superlative role models who are openly homosexual now. The almost unbelievable progress we have made in both improving the law and opening the culture has broken through the silence that equalled death and a multitude of other gruesome, painful and noxious consequences.

Which is why I’m willing to give celebrities who want to avoid being coopted by the gay political establishment a break. There are actual gay politicians now, the professionals in this sport. And there are enough high-profile homosexual celebrities that we don’t need every actor out there to publicly declare and risk conscription.

Count me as someone who would like to see The Dish continue after Andrew Sullivan’s retirement. I have been reading Andrew for as long as he’s been published, and have been a happy Dish Head since its first day. I don’t pay directly for much on the Internet, but his site has been well worth my time and money.

Andrew is a hard and deep thinker, and there’s nothing I enjoy more than reading something of his that I am inclined to disagree with to see if he can change my mind. Sometimes he has (the Clintons’ lust for power), sometimes not (NFL concussions), and sometimes I’m left suspended in mid-air (Trig Palin).

But there’s a less discussed aspect to The Dish that I would like to see survive him. Over the years, it has developed into what would have been called, in an earlier time, a salon. A great deal of Dishness happens when Andrew steps aside and just serves as the host for a vivacious discussion among well-informed and highly interesting voices.

My guess is that this is not something he is able to achieve on his own. The staff at The Dish has developed a keen judgment about what things are worth my time. And that includes not only thoughtful and sometimes dyspeptic argument, but also the invaluable Mental Health Breaks, the cream of dog and cat videos, and the Sunday Sermons that are better than anything I remember from any Catholic priest I ever had to listen to.

Even without Andrew, I think that sensibility can continue. I know it is something I rely on, and possibly am addicted to. The Dish filters out much of the Internet’s toxicity. We are all going to need sites with that kind of judgment in the years to come. I’m ready to continue supporting the people who are doing that job so well right now, if they are willing.

This strikes me as very foolish. A gay and lesbian crowdsourcing group called All Out has pressured Google Translate to remove any words that “gay” could be translated as which are offensive. If I’m understanding this correctly, lesbians and gay men who encounter speakers of another language and rely on Google Translate will only receive politically acceptable words and phrases.

There are times, I admit, when it would be nice to live in the bubble of wonderfulness these folks envision. But if someone from Saudi Arabia, say, is calling me a faggot, I’d like to know that. It’s possible he would offer up other cues that would make the point, but all the same language matters, and sometimes it matters most when it is offensive.

I want to be as supportive of the new Mormon position on anti-gay discrimination as possible. Their leadership has agreed to support legislation that protects against housing and employment discrimination, as long as it includes religious liberty protection as well. This is a major announcement from a major religion that has spent a lot of time and capital fighting against our equality in the civil sector. I am grateful that they took this bold step.

Unfortunately, I think it’s a bad deal. Not for the reasons the Human Rights Campaign articulates, though. They are concerned that the religious freedom protections would serve as a loophole. I can’t argue with that, and I have a lot fewer problems with it than HRC does.

For me, the problem with the deal is what church leadership is willing to fight for. Nearly all of the problems we have had with religious liberty over the last couple of decades have been due to the anti-discrimination laws the church now finds worthwhile. HRC has illustrated exactly why that continues to be the problem.

The one thing the church leaves off the table is support for civil marriage equality. Virtually all of the lawsuits, government actions and agita that religious individuals and businesses have brought to public attention have not been over the legality of same-sex marriage, they have been because of laws that prohibit discrimination based on sexual orientation itself.

If I can have anti-discrimination laws or marriage equality, I’ll pick marriage equality every time.

I do not want to diminish the significance of this move. It will have positive repurcussions both among gay LDS members (not to mention their families) and the broader faith community. But by choosing to support the kinds of anti-discrimination laws that are most subject to civil abuse, and then carving out only the abuse that they are most subject to, they have done the political thing rather than the right one. There is more wrong with anti-discrimination laws in today’s world than just religious difficulties.

Worse than that is the necessary implication in the whole deal: denying that the civil laws prohibiting same-sex marriage are, themselves, the core discrimination that undermines the liberty this nation guarantees. The church will now be able to say that it opposes discrimination based on sexual orientation, while continuing to support civil laws that demand discrimination.

On balance, this concern may make little difference. I am hoping the Supreme Court will ultimately resolve marriage equality the right way, and call that form of discrimination what it is. That decision will make not a bit of difference to the Mormon church, or any other religious denomination.

But years after that happens, we will still have to deal with the legacy that anti-discrimination laws, long past their sell-by date, have left us. This may give them a bit more legitimacy than I think they deserve.

We know what they say they have in mind: the mechanical litany of protecting the right of children to have two biologically related parents; some version of Christian values; the independence of the people’s will against unelected judges; and the right of a state to define family relations. Each of those has some appeal, and some merit.

But Alabama House Speaker Mike Hubbard revealed a gap in the politics that should ease those who are jittery about the coming Supreme Court case. After a federal court last week struck down Alabama’s prohibition on same-sex marriage as unconstitutional, Hubbard said, “It is outrageous when a single unelected and unaccountable federal judge can overturn the will of millions of Alabamians who stand in firm support of the Sanctity of Marriage Amendment.”

Chris Geidner helpfully pointed out that, far from multiple millions, less than 700,000 Alabamians voted for the amendment. And that’s out of a population of 4.8 million.

This does not mean marriage equality is popular in Alabama. But you can’t deny that 4.1 million Alabamians did not weigh in on the sanctity of marriage. A lot of them weren’t registered to vote, a lot probably had other things to do on voting day, and you have to assume that a lot of them just didn’t really give much of a damn about this particular issue.

It’s not unlikely that, if this decision is upheld, either on appeal or as a result of the U.S. Supreme Court’s ruling next June, there will be a certain amount of discontent in Alabama, possibly more than there has been in the 36 other states whose marriage equality bans have been overturned.

But think about the magnitude of the yawn that has greeted those other decisions.

So far, the Supreme Court has only overturned one state ban on same-sex marriage, California’s. Seven million Californians passed that ban (against 6.4 million who opposed it), and the court overturned it two years ago in Hollingsworth v. Perry.

While California is a pretty blue state, it is extraordinarily hard to find any of those seven million voters who, after the court’s decision, took to the streets, stormed the courthouse doors, or even wrote letters to the editor. The decision was met by the ban’s many supporters with a shrug. All of the fear and anxiety and emotional manipulation from one of California’s ugliest initiative campaigns had been utterly forgotten. No hard feelings, who’s providing snacks for the kids’ soccer game Saturday?

And that seems to be what’s happening in the other states where bans have been falling on a weekly basis. Most people are just relieved to be getting done with this.

That might be because equality advocates have had it right from the start: this really doesn’t affect most people’s lives negatively, and the ones whose lives it does affect are positively joyous. The bans were a deeply cynical and politically timed moment in American history designed to exploit the last dying gasps of an ages-old prejudice. That spasm forced the constitutional issue, and it turns out the cynics were right in their own way. That particular form of bigotry was dying, and they timed the bans well.

This last generation of politicians still has some long-tail prejudice to cater to. But I’m feeling confident they’re going to find this snake oil doesn’t dazzle the masses the way it used to.

It’s easy to second-guess the arguments lawyers make in high profile cases, and while that’s pretty much what I will be doing, I want to make clear that the arguments made in favor of marriage equality at the U.S. Sixth Circuit Court of Appeals this week were very good.

But an important colloquy could have gone better, in my opinion, and since we haven’t heard the last of it (there are many, many more cases still pending), I wanted to add my own thoughts about how to think about the question.

It was about a case I’ve mentioned before. Mark Joseph Stern at Slate describes what happened, focusing on the swing justice at the Sixth Circuit, Jeffrey Sutton:

In a 1972 case called Baker v. Nelson, the Supreme Court dismissed a challenge to Minnesota’s gay marriage ban “for want of a substantial federal question”—that is to say, the court didn’t see a constitutional flaw in the ban. The case was decided through a summary affirmance of a lower court ruling, meaning the justices didn’t hear arguments or write a real opinion. But a summary affirmance is generally considered to be binding precedent on lower courts

You might think that Justice Anthony Kennedy would confront Baker—the only Supreme Court precedent to deal directly with the merits of state gay marriage bans—when he overturned DOMA. But instead, he ignored it, perhaps in an effort to leave the whole question of state-level bans for another day. Every district court that has since struck down these bans worked around Baker by citing a somewhat ambiguous loophole: A summary affirmance might not be controlling precedent when it has since been undermined by “doctrinal developments.”

The question for Sutton, then, is simple: Does the trio of great gay rights cases (Romer, Lawrence, and Windsor) render Baker’s holding completely moot? Or does Baker remain binding precedent? Sutton seemed to lean toward keeping Baker on life support for now and letting the Supreme Court pull the plug, noting, “Even when you see one line of cases crumbling, lower courts aren’t allowed to infer, and anticipatorily overrule, this other line of cases. So as a matter of hierarchy, aren’t we stuck with Baker?”

But then Sutton seemed to walk back his statement, musing that “the legal reasoning in other cases”—Romer, Lawrence, and especially Windsor—were “totally inconsistent with Baker.” At the end of his colloquy on the topic, he seemed a little stumped, and more than a little frustrated.

Judge Sutton had a sound legal argument for following Baker, but he was missing the forest for the trees because, at exactly that moment, the U.S. Court of Appeals for the Sixth Circuit was hearing appeals in six cases from four states.

In 1973, it was possible for the highest court in the land to say that they could not see a federal question in a case where two men were denied the right to marry one another. In contrast, whatever else can be said in 2014, there is no doubt at all that there is a very prominent federal question about that subject. If there were not, then what on God’s earth was the Sixth Circuit doing? Not a single one of the challenges to state bans on same-sex marriage have been filed and left to gather dust. Serious lawyers with serious clients have answered every one of those complaints. While it is possible to debate the merits of their arguments, they are making serious arguments about something even they view as a serious question.

Stated another way, Baker is incompatible with the very fact that these cases are now before the courts. Of course there is a federal question today. Whatever else can be said about the presidential value of summary affirmances in general, the premise of the affirmance in Baker was based on premises about sexual orientation that have no continuing validity at all.

Judge Sutton could ultimately decide that Baker has not been overturned by the U.S. Supreme Court. As Dale Carpenter points out, that would actually be the least harmful loss for us, since it would require only about a paragraph of text in the Sixth Circuit opinion (about as much as the Supreme Court devoted to the Baker affirmance). The opinion would not need to go any further than saying “We are bound by Baker unless and until the Supreme Court overturns it.”

But that is to ignore what is right in front of the court’s nose. Something much more consequential than the Supreme Court has overtaken, if not overturned Baker. What was unimaginable to the courts then is common discourse now. Every court that has heard the argument over same-sex marriage knows for a fact that Baker v Nelson is a nullity.

Like Stephen, I found the lack of reaction to the CDC report on the number of self-reported homosexual Americans pretty interesting. For those of us old enough to remember being gay in the 70s (that’s the 1970s, for younger readers), it’s hard to imagine that these low numbers, well below the Kinsey-ish estimates of 10%, did not cause much of a stir.

But, indirectly, IGF occassional contributor John Corvino, helped me think about why this is important. His new article at Commonweal, “Thinking Straight,” isn’t about the numbers game; it’s a great analysis of an essay by Michael Hannon called “Against Homosexuality,” which tries to turn Queer Theory against the notion of gay rights. John does a fine job of explaining how wrong Hannon is, but John’s main point is that while categories for sexual orientation do have their problems, they serve a very practical and important purpose. Absent a fairly clear understanding that there are other people who are attracted to members of their own sex, and that homosexual people have an ordered place in society, it’s very hard for young lesbians and gay boys to find a healthy place in their developing psyches for their sexual feelings.

The closet distorted the more ordinary process heterosexual kids go through, from awkward embarrassment to adult relationships. For generations, homosexual kids went from awkward embarrassment to public silence, possibly awkward heterosexual marriage, or at best awkward adult companionship.

In that context, those fighting for gay equality in the 60s and 70s had to establish something new in public discourse: the fact that there were people who deserved the rights we were claiming. Back then, it was hard to get people willing to testify at public hearings. Remember, those were the days when it was still a crime in most states to even be homosexual. We had heterosexual allies, but those of us who wanted to change the laws had the burden of demonstrating that, despite public appearances, there really was a homosexual population that was affected.

The 10% figure served as the proxy for all those closeted people. It wasn’t accurate, but it had some science behind it. And it provided a little comfort to help bring a few more people into the public eye as open homosexuals.

Now that the closet is eroding (it’s not gone by any means — look how hard it was for Ian Thorpe to come out), we seem to have reached critical mass in the number of people who are comfortable being open about being gay. Today, it’s hard for either the general public or, most importantly, young homosexuals, to avoid knowing something about the fact that homosexual people have a place in society, with or without a spouse.

And it turns out that it doesn’t make a difference how many of those people there are. Whether it’s 10% or 2% or 1.6%, the actual number is not what’s at issue. The equal protection clause doesn’t have a numerical threshold. If the law, itself, is being used by a majority (however large) to unfairly discriminate against a minority (however small), the constitution requires the courts to assure that there is a good reason (sometimes a very good reason) for the differential treatment.

So, for myself, I am going to be spending my time in other pursuits as people continue to exert time and resources trying to figure out how many lesbians and gay men there are. Now that we’re on the path to full equal protection of the law, everything else is just demographics.

Welcome

IGF CultureWatch is a blog that originated with the Independent Gay Forum, a group of writers and activists who focused on advancing gay and lesbian legal equality and social inclusion beyond ideological rigidity and leftwing orthodoxy. more